Ranjit Singh vs Muncipal Committee

G.C. Mital, J.—On 25th January, 1967, Ranjit Singh filed a suit against Municipal Committee, Samrala and Kashmira Singh for a declaration to the effect that the vacant side ABCD shown in red colour in the plan attached with the plaint, was exclusively owned and possessed by the Plaintiff and was neither a public street nor a private street and for grant of permanent injunction restraining the Defendants from interfering in the use of the disputed site by the Plaintiff in any manner. The suit was contested by the Defendants who pleaded that the site in dispute was being used as a street for the last fifty years and was rightly declared as a public street. On the contest of the parties, the following issue were framed:

(1) Whether the Plaintiff is the owner of the site ABCD shown as red in the site plan attached with the plaint? OPP.

(2) Whether the order dated 1st October, 1962, passed by the Administrator, Muncipal Committee, Samrala; declaring the disputed land as public property is capricious, vindictive, oppressive, arbitrary, ultra vires and illegal? O.P.P.

(3) What is the effect of previous suit filed by the Plaintiff against the deceased Sainsi, father of the Defendant No. 2 and Chura? O.P.P.

(4) Whether the Plaintiff is entitled to the injunction prayed for? O.P.P.

(5) Whether the site in dispute has been used as a public street since long? If so, to what effect? O.P.D.

(6) Relief.

After evidence was led, both the Courts below found that the Plaintiff was owner of the disputed site but held that it was rightly declared to be a public street. The Plaintiff has come up in second appeal to this Court.

In order to decide the point involved, it will be necessary to refer to the plan Exhibit P. 6 showing the site marked ABCD depicted in red colour which was declared as a public street. The opening of this street towards the main bazar depicted by letters AB is 6''--3" and as one proceeds from that place inside the street, the street gets narrower and the width comes down to 4''--9" and thereafter it starts increasing towards the other end to 5''--6" as shown by letters CD. The opening at point CD is on the Samrala-Khanna road. About this very street a litigation started at the instance of the Appellant on 7th May, 1947, against Sainsi and Chuhra sons of Attra in which the Appellant claimed to be the exclusive owner of the site and wanted to restrain the Defendants from using the same as a path and disputed that it was joint property of the parties. The site in dispute is situated between the properties of the Plaintiff and the Defendants of that suit. Subordinate Judge 1st Class, Ludhiana, by judgment and decree dated 10th February, 1950 (copy Exhibit P. 8) came to the conclusion that the Plaintiff failed to prove that he was the sole owner of the disputed site with the result that the suit was dismissed. The Plaintiff took up the matter in appeal and the learned District Judge, Ludhiana, allowed the same and granted a decree for declaration to the effect that the Plaintiff was exclusive owner of 10 Biswansis out of the disputed area as detailed in Exhibit P. 4 and only 2 Biswansis as detailed in that document, belonged to the Defendants and an injunction was granted to the Plaintiff against the Defendants prohibiting them from opening any door or drain on the land belonging to the Plaintiff, vide judgment; and decree dated 6th February, 1952 (copies Exhibits P. 9 and P. 10). The Defendants filed RSA. No. 286 of 1952 in this Court. This Court maintained the ownership of the Plaintiff with regard to 10 Biswansis and of the Defendants with regard to the remaining 2 Biswansis, as held by the learned District Judge and therefore, dismissed the appeal of the Defendants by judgment dated 7th April, 1955 (copy Exhibit P. 11). This clearly shows that the site in dispute, which is between the two houses of the parties, belonged exclusively to Ranjit Singh Appellant before me whereas it was alleged to be joint of the parties according to the defence in the previous litigation but the finding was recorded that major portion of it belonged to Ranjit Singh Plaintiff and only a small portion belonged to those Defendants. Therefore, it is clear that till 1935 when the case was decided by this Court, it was nobody''s case that the lane in dispute was a street or a public street and was being used by all and sundry. On the other hand, what is clear is that Ranjit Singh Plaintiff disputed the use of the lane even by his immediate neighbours in which he succeeded upto this Court. The facts on the record reveal that after the previous Defendants failed upto this Court, Chuhar Singh along with several other persons made an application dated 18th December, 1961, to the Municipal Committee, Samrala, complaining that in the lane between the shops of Ranjit Singh Plaintiff and Chuhar Singh, on which their houses are situate, the water of the two houses is drained out and since there is no pucca drain to take the water out of the lane, it stagnates there and during summer mosquitoes breed and it gives foul smell. They, therefore, requested that a pucca drain be constructed in the lane. The original application is Exhibit D. 1. On that complaint a report was made that in order to carry out the pucca construction the lane will have to be declared a public street and for that matter notice u/s 171 of the Punjab Municipal Act (hereinafter called the Act) be issued. This report is Exhibit D. 2. Thereafter, an order was issued u/s 171(4) of the Act proposing to declare the street as a public street and the final order declaring it to be a public street was passed on 1st October, 1962, a copy of which has been placed on record as Exhibit D. 8 and Exhibit D. 6 is a court of the publication made after declaring the lane to be a public street. Thereafter, one plan was submitted by Kashmira Singh son of Sainsi proposing to raise new construction on his site abutting on the disputed lane which was declared to be a public street, showing several openings in that street in the proposed plan and when the plan was sanctioned but before he could raise any construction, Ranjit Singh Plaintiff came to know about it and filed the present suit, both against the Municipal Committee and Kashmira Singh, in which he challenged the declaration of the site belonging to him to be a public street.

The definition of "street" and "public street" as given in Sections 3(3)(a) and (b) of the Act, are as under:

3(13)(a) ''street'' shall mean any road, footway, square, court, alley or passage, accessible, whether permanently or temporarily to the public and whether a thoroughfare or not ; and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut thereon and if it is used by any persons as a means of access to or from any public place of thoroughfare, whether such persons be occupiers of such buildings or not, but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid ; and shall include also the drains or gutters therein, or on either side and the land, whether covered or rot by any pavement, verandah or other erection, up to the boundary of any abutting property nor accessible to the public;

(b) ''public street'' shall mean any street--

(i) heretofore levelled, paved, metalled, channeled, sewered, or repaired out of municipal or other public funds, unless before such work was carried out there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor ; or

(ii) which, under the provisions of Section 171, is declared by the committee to be, or under any other provision of this Act becomes, a public street.

A reading of the definition of ''street'' shows that a private property of a person can be a street but it contains an exception to the effect it shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid A ''public street'' is one which is maintained by the municipal committee and expenses are borne on it from the municipal or other public funds and all such streets which are declared ''public streets'' u/s 171 of the Act.

To make the site in dispute to be a ''street'' it had to be shown that it was being used by persons, as a means of access to or from any public place or thoroughfare. In this case, some oral evidence has come on the record to show that some persons had been passing through the site in dispute but to my mind that evidence is lacking in material particulars because till 1955 the dispute was only between the two neighbours about the use of the site and no stranger ever came forward to use it or to dispute the obstruction by Ranjit Singh owner of the site. From the record I further find that the matter between the parties to the previous litigation did not rest only upto 1955 but went upto 1958, as the Plaintiff took out execution of the decree in 1958 by alleging that the judgment-debtors had violated it. This is clear from the judgment of the learned District Judge dated 11th August, (sic), a copy of which has been produced by the Defendants in this case as Exhibit D. 9, in which it was held that mere opening of doors and windows in their own property towards the side of the Plaintiff did not amount to violation of the decree as the judgment-debtors admitted that they were not passing through those doors and windows towards the property of the decree holder. Therefore, moment the immediate neighbour of the site in dispute was not allowed to use the site, the evidence of certain witnesses produced by them to make it a street would not in law make it a street. The evidence of couple of witnesses produced by the Defendants does not inspire confidence and the Courts below were in error in not appreciating the evidence produced by the Defendants-Respondents in the light of definition of ''street'' and therefore, they completely misdirected themselves in appreciating that evidence. In this regard I draw support from a Division Bench judgment of the Lahore High Court (in which the leading judgment was delivered by Sir Shadi Lal, C.J.) in AIR 1930 547 (Lahore) , the relevant passage from which may be reproduced:

It is expressly laid down by the legislature that a street shall not include any part of a vacant space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid.... Where therefore the occupiers of a building can by shutting the gate prevent all persons from having access to a passage, the passage cannot be held to be a street, nor can it be called a lane.

As already observed, it is clearly made out that till 1958, the Plaintiff had been obstructing everybody''s entry, including that of his immediate neighbour. It was only the ingenuity of his neighbours that application Exhibit D-1 was filed by saying that this was being used as a lane by the public for the last 50--60 years, which case the ancestors of Kashmira Singh never pleaded in the written statement filed earlier except by saying that it was joint property of the parties and therefore, they had a right of passage. Therefore, I am of the firm view that the lane in dispute, looking to its situation was not a street. This view of mine finds support from the following observations in Nagar Palika Bina v. Shri Nand Lal AIR 196l M.P. 212.

A mere user, even though it is unobstructed, does not mean ''a right of way''. Unless it is established that the public used the disputed land as of right, it does not become a ''public street'' under the Section 3(m)(2).

Once I have come to the conclusion that the lane in dispute was not a street, the next question which would arise for consideration is whether it has been rightly declared to be a public street. The basic procedure contained in Section 171(1) to (3) is that when the municipal committee considers that in any street or in any part of such street within the municipality, it is necessary, for the public health, convenience or safety, to do any of the acts detailed in Sub-section (1), it can ask the owner to carry out the work within the time specified and if he fails to carry it out it can be carried by the committee at the expense of the owner and thereafter it can be declared as a public street and shall vest in the committee. The procedure prescribed under sub-section (sic) to (3) of Section 171 of the Act has not been followed in this case and action has been taken under Sub-section (4). In order to comply with Sub-section (4), a notice had to be fixed up in the street giving intimation of the intention of the municipal committee to declare it a public street so that the owner thereof may file objections and after hearing the objections the same could be declared to be a public street. The procedure provided in Sub-section (4) has not been followed as it has not been shown that the notice was ever fixed up in the street or that the owner came to know about it. Therefore, the entire proceedings taken under Sub-section (4) of the Act were wholly without jurisdiction and the declaration made on 1st October, 1962, would be non est Moreover, the pre-condition of the disputed lane being a street is also missing. Accordingly, I hold that the declaration of the lane in dispute to be a public street is liable to be struck down on the aforesaid grounds.

The entire facts of the case clearly go to show that about the lane in dispute, which belonged to the Appellant, the endeavour of his neighbours namely Chuhar Singh and Sainsi and later on by Kashmira Singh, Defendent No. 2, who is the son of Sainsi, throughout has been to somehow get entrance to their property through that lane in spite of the fact that they failed right from 1947 to 1908 in various Courts. The aforesaid three persons have clear entrance from the main road and on which their house abuts but they want opening of their property towards the side of the Appellant also inspite of the binding decrees of the Courts and to circumvent the decision of the Courts, an application was moved before the municipal committee to declare the property of the Appellant as a public treet. It this was to be permitted and power is given to the municipal committee to declare any property to be a public street, it will have far-reaching consequences because the municipal committee would be able to declare any property as a public street merely by issue of a notice without even resorting to acquisition proceedings. As already observed in the earlier part of the judgment, the disputed part of the Appellant''s property has never been a street and the dimensions thereof are also such that it is about 6 feet at the entrance, less than 5 ft. somewhere in the middle and little over 5 ft. towards the other end. It has come in evidence that this passage was left by the Appellant for himself and his tenant to the hind portion of the shops and by no stretch of imagination it could be held to be a street within the definition of ''street'' contained in the Act, as at all the time the owner had the right to obstruct the entry and had been obstructing the entry even of his immediate neighbours. There-tore, I am of the opinion that the Courts below were in error in not decreeing the Appellant''s suit and in not granting the relief as prayed for.

For the reasons recorded above, this appeal is allowed, the judgments and decrees of the Courts below are set aside and the suit filed by the Plaintiff is decreed with costs throughout, payable half and half by both the Respondents. Counsel''s fee Rs. 100/-.